The Sexual Offenders and Related Matters Amendment Act 32 of 2007 prohibits the employment of sex offenders by employers who interact with children and the mentally disabled. There are far-reaching implications for employees, employers and service providers in the education-, hospitality- and related environments. Chapter 6 of the Act creates obligations of disclosure on employees and applicants for employment; and makes provision for compulsory immediate termination of the employment contract of employees whose names appear in the register.

NATIONAL REGISTER FOR SEXUAL OFFENDERS – THE OBLIGATIONS OF EMPLOYERS WHOSE EMPLOYEES HAVE ACCESS TO CHILDREN OR THE MENTALLY DISABLED Compiled by Judith Griessel (Labour Law and Employment Relations Consultant) – 31 March 2014 INTRODUCTION The Criminal Law (Sexual Offenders and Related Matters) Amendment Act 32 of 2007 attempts to protect vulnerable victims prohibiting the employment of sex offenders by employers who interact with children and the mentally disabled. There are far-reaching implications for employees, employers and service providers in the education-, hospitality- and related environments. Particularly, chapter 6 dealing with the National Register for Sex Offenders, creates obligations of disclosure on employees and applicants for employment; and makes provision for compulsory immediate termination of the employment contract of employees whose names appear in the register (bar certain qualifications). National Register for Sex Offenders The Act obliges the Minister of Justice and Constitutional Development to establish and maintain a National Register for Sex Offenders recording the names and details of all persons convicted of committing sexual offences against a child or a person who is mentally disabled. The National Register will not be accessible to the general public - but information will be available to law enforcement, and upon request to persons in their individual capacity and employers in respect of employees / applicants for employment. Prohibition on employment of certain types of sex offenders A person whose particulars have been included in the National Register, may not– (a) be employed to work with a child or a person who is mentally disabled in any circumstances; (b) hold any position, related to his or her employment, or for any commercial benefit which in any manner places him or her in any position of authority, supervision or care of a child or person who is mentally disabled; 1
NATIONAL REGISTER FOR SEXUAL OFFENDERS     THE OBLIGATIONS OF EMPLOYERS WHOSE EMPLOYEES HAVE ACCESS TO CHILDREN OR THE MEN...
(c) hold a position where he or she gains access to a person who is mentally disabled or places where children or persons who are mentally disabled are present or congregate. The concepts “employer” and “employee” are defined. Employee includes an applicant for employment which the Act describes as “a potential employee”. Employee means– (a) any person who applies to work for or works for an employer, and who receives, or is entitled to receive, any remuneration, reward, favour or benefit; or (b) any person, other than a person contemplated in (a), who in any manner applies to assist or assists in carrying on or conducting the business of an employer, whether or not he or she is entitled to receive remuneration, reward, favour or benefit. Employer A distinction is drawn between public sector employers and private sector employers. Employer (in the private sector) means any person, organisation, institution, club, sports club, association or body who or which, as the case may be– (i) employs employees who, in any manner and during the course of their employment, will be placed in a position of authority, supervision or care of a child or a person who is mentally disabled or working with or will gain access to a child or a person who is mentally disabled or places where children or persons who are mentally disabled are present or congregate; or (ii) owns, manages, operates, has any business or economic interest in or is in any manner responsible for, or participates or assists in the management or operation of any entity or business concern or trade relating to the supervision over or care of a child or a person who is mentally disabled or working with or who gains access to a child or a person who is mentally disabled or places where children or person who are mentally disabled are present or congregate. OBLIGATIONS OF EMPLOYERS An employer’s duty concerning existing employees and as regards applicants for a job differ. An employer is under a duty to screen and verify whether an applicant for a job is on the National Register. 2
 c   hold a position where he or she gains access to a person who is mentally disabled or places where children or persons...
As far as existing employees are concerned, an employer may screen them by applying for a certificate from the Registrar but this is not compulsory. 1. Getting clearance 1.1. Employer’s duty as regards applicants for a job An employer, as defined, is obliged to make an inquiry before employing a person. • An employer who intends employing an applicant for employment, must apply to the Registrar for a prescribed certificate. The certificates will state whether or not the particulars of “the potential employee” are recorded in the National Register. • Persons such as teachers, therapists or counsellors who work in industries around children, should probably have an up to date clearance certificate handy – just as they would have copies of their qualifications / permits / licences. • An employer should also make a specific enquiry from applicants during the recruitment process, as to whether they have been convicted of such sexual offences or qualifies for inclusion in the register. This should preferably be done in writing, e.g. as a question on the application form. • A clause should also be included in the contact of employment to cover (future) inclusion in the register and to place an onus on the employee to inform the employer, should the employee’s status change in this regard. • If the applicant’s name and particulars are in the National Register, the employer may “not employ” the applicant for a job. This obligation is clear and unambiguous. • If the applicant believes there is a mistake, the applicant may himself or herself apply for a certificate and have the entry removed should it be erroneous. If the applicant is a sex offender or an alleged sex offender who is entitled to have an entry removed on account of the lapse of a time the applicant may apply for the removal of his or her name. The applicant, who is in the clear, may then reapply for employment. 3
As far as existing employees are concerned, an employer may screen them by applying for a certificate from the Registrar b...
1.2. Employer’s duty as regards existing employees Employees can apply for a certificate in terms of their own details, and an employer (as defined) who has in his or her employment any employee, may apply to the Registrar for a certificate, stating whether or not the particulars of the employee are recorded in the register. It is recommended that the employer establishes a protocol to ensure that certificates are updated from time to time – possibly every two to three years. 1.3. Getting clearance whilst the register is not operative yet The Registrar will not be able to comply with the request for clearance certificates until the National Register is fully operative. As of date, the Register has not been fully compiled and certificates cannot be issued as yet. However, the legal obligation on employers to ensure that they do not employ anyone who qualifies for inclusion in the register, is already a statutory requirement in terms of Chapter 6. Accordingly, apart from asking the employee to make an affidavit confirming that he/she does not qualify for inclusion in the register, the advice from the Registrar at this point is to check with the police if the (prospective) employee is cleared. (There are organisations who offer a service to schools, for example, taking fingerprints on premises and progressing the requests with the SAP in order to obtain reports on employees’ criminal records.) There are however difficulties and risks associated with this process. • The police report will not only provide information about sexual offences committed by an employee, but a complete criminal record. • This will give the employer access to potentially irrelevant information which they may be tempted to use against such an employee. In terms of established legal principles, it must be shown that there is a link between a criminal offence committed and the job that the (prospective) employee would occupy, if employment is going to be denied on the grounds of a criminal conviction. 4
1.2. Employer   s duty as regards existing employees Employees can apply for a certificate in terms of their own details, ...
• Employees / applicants for employment will also have to give specific permission for an employer to do criminal checks which would be broader than just checking for relevant sexual offences as prescribed by statute. 2. Obligation not to continue to employ/immediately terminate 2.1. An employer, (subject to a qualification) may “not continue to employ an employee” who is in employment, if the particulars of the employee are included (or qualify for inclusion) in the register, whether such offence was committed during the course of his or her employment or not. In another subsection it is said that employer who, during the course of an employment relationship ascertains that the particulars of an employee have been recorded in the register must (subject to a qualification) “immediately terminate” the employment of such employee. 2.2. Apart from termination of employees whose names are recorded in the National Register, an affected employer must (subject to a qualification) also immediately terminate the employment of an employee who fails to disclose a conviction of a sexual offence against a child or a person who is mentally disabled, or which otherwise falls within the ambit of the legislation in this regard. 2.3. How to go about discharging this obligation The obligation not to continue to employ / terminate immediately the service of an existing employee, is tempered by the provisions of s 45(2)(d) of the Act. The qualification is designed to balance an employee’s job security against the obligation to protect children and the mentally ill from convicted or alleged sex offender. • An employer is therefore obliged to take reasonable steps to prevent an employee, whose particulars are recorded in the register, from continuing to gain access to a child or a person who is mentally disabled, in the course of his or her employment. • One such step requires an employer, if reasonably possible or practicable, to transfer such person from the post or position occupied by him or her to another post or position. But even if the step is reasonable or practicable, if any such steps to be taken will not ensure the safety of a child or a person 5
    Employees   applicants for employment will also have to give specific permission for an employer to do criminal checks...
who is mentally disabled, the employment relationship must be terminated immediately. • The phrase “may not continue to employ” is not very precise. It does not mean that the employment of the sex offender is automatically terminated. As the phrase “terminate immediately” makes it clear the onus to discontinue employment is placed on the employer, but only if alternative accommodation is not feasible. If all the requirements are present, the employer must terminate the employment. • The word “terminate” also does not necessarily mean that the employer must dismiss the employee. The termination of a contract may take various forms. The termination could be effected mutually or by the resignation of the sex offender. But, it is clear that, if the worst comes to the worst, the employer must unilaterally terminate the employment by dismissing the sex offender. It is foreseeable that this situation could possibly qualify as a kind of operational incapacity. 2.4. Must the employee be given a hearing? The employment must be terminated immediately. But the section also envisages that the employer must or should make some inquiries before the employment relationship is terminated. The dismissal to be fair would have to be preceded by a fair process. The principal purpose of the process would be to ascertain whether the employee and the name on the register refer to the same person. And if so, if the employer can accommodate the employee in another position. This suggests that the immediate termination is not required until the alternatives have been explored and due process folllowed. 2.5. Immediate termination Immediate termination may mean summary dismissal - the intention being that the employee not be given a period of notice which he or she will work and with it an opportunity to continue his or her association with a child or a mentally disabled person. 6
who is mentally disabled, the employment relationship must be terminated immediately.     The phrase    may not continue t...
• There is however nothing which prevents an employer from giving pay in lieu of notice should the employer wish to do so provided that the actually work ceases immediately. • It may also be that the in spite of the injunction to “not to continue to employ” or “immediately terminate”, circumstances may permit (and fairness oblige) the employer to grant the employee (a) leave of absence; or (b) a suspension of the contract employment. • It also does not bar an employer from suspending an employee or placing him/her on unpaid leave for a reasonable period while s/he attempts to remedy the situation, or for example applies to have his/her name removed from the Register. 3. Penalty for non-compliance An employer who fails to comply with any provision of s 45 of the Act is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding seven years or to both a fine and imprisonment. In addition, an employer who fails to comply with the duties set out in the statute may be sued civilly by the child (or guardian) or disabled person (or curator) should an employee who may not be employed molest them. OBLIGATIONS OF APPLICANTS FOR A JOB AND EMPLOYEES 1. A person who applies for a job (a potential employee) must, if he or she has been convicted of a sexual offence against a child or a person who is mentally disabled or is alleged to have committed such a sexual offence but is mentally challenged, “disclose such conviction or finding when applying for employment”. 2. An employee in the employ of an employer, who is or was convicted of a sexual offence against a child or a person who is mentally disabled, or is alleged to have committed such a sexual offence but is mentally challenged, must without delay disclose the conviction or finding to his or her employer. This obligation applies irrespective of whether or not the sexual offence was committed or allegedly committed during the course of his or her employment i.e. while he or she was employed by the current employer. 7
    There is however nothing which prevents an employer from giving pay in lieu of notice should the employer wish to do s...
An employee who fails to comply with these obligations is guilty of an offence and is liable on conviction to a fine or to imprisonment not exceeding seven years or to both a fine and imprisonment. CONCLUSION The Act places a substantial burden on an employer whose business involves the care of children and the mentally disabled. The Education- and Hospitality sectors are probably the most crucially affected. The obligations also extend to the domestic employer who employs an au pair and childminder or a caregiver for a mentally disabled person. The definition of “employee” in the Act is very wide. It is foreseeable that organisations such as schools will also have to take steps to ensure that service providers whose employees are potentially in contact with the children, provide assurances and indemnities to the school to the effect that they and/or their employees have been cleared in this regard. The same would apply to therapists, sports coaches, music teachers, counsellors at school camps, bus drivers, tour operators and the like. Once it is all systems go, application to the Registrar for the relevant certificates must be made in the prescribed manner, and in the format as published in the Regulations to the Act. Recognition: With thanks to Contemporary Labour Law for permission to incorporate herein and publish extracts from the article by Judge Adolf Landman, “The employer’s duty to protect children and the mentally disabled by not employing sex offenders in positions relating to them” - April 2008. Judith Griessel Employment Relations and Labour Law Consultant B. Iuris. LL.B (UOFS) Admitted High Court Advocate Tel: 082 928 2990 E-mail: judith@griesselconsulting.co.za www.griesselconsulting.co.za 8
An employee who fails to comply with these obligations is guilty of an offence and is liable on conviction to a fine or to...